society program. columbia law school professor sarah talks about her award-winning book, policing the open road, how cars transformed american freedom. in this presentation the professor focuses on a chapter in the book dealing with how for the amendment rights regarding search and seizure was applied to automobiles and legal reforms she argues are needed to prevent police abuses and mistakes. >> today's lecture, has an intriguing title, "automotive fourth amendment." the professor is going to talk for about 30 minutes, and then we will take questions. if you have questions or comments for the professor, please submit them via the question and answer feature of your zoom connection. the society's executive director will review those communications

and present to the professor as many as we can get into our somewhat constrained time limits. now, about our speaker, sarah is a professor at columbia law school. she is a legal historian of criminal law and procedure in 20th century united states. her recent book entitled "policing the open road: how cars transformed american freedom," examines the history of the automobile in order to explain the evolution of the fourth amendment, and to explore the dilemma of police discretion in a society committed to the rule of law. the book was named one of 2019's

10 best history books by the smithsonian magazine. it also received a number of prizes, including the book award, the literal prize from the american historical association, and the ralph waldo emerson award from the phi beta kappa society. in addition to publishing and academic journal, professor seo has written for the atlantic boston review, the new york review of books, and the washington post. after earning her jd at columbia in 2007, professor seo clerked for judge of the district court for the southern district of new york. and later she clerked for the

judge of the u.s. court of appeals for the second circuit. her cv is certainly not shabby. please join me in welcoming our distinguished speaker, professor seo. in professor, the society virtual platform is now yours, and we are grateful that you are joining us today and we look forward to it. thank you. >> thank you so much for that warm welcome and for inviting me to share a little bit about my scholarship. it's something i have been looking forward to since it has been scheduled and put on the calendar. to begin, i want to share my screen. can you see this? great. so, i want to begin with a

paradox. cars transformed -- cars symbolized freedom in 20th century american culture. my favorite example here is the dodge commercial, which has the tagline, americans got two things right: freedom and cars. the symbolism was forged from the very early years of the automobile as mass production democratized mobility as you can see in this 1911 advertisement for every man. according to the ford motor company, women can also experience the freedom of driving, which was happening even before they gained the right to vote. but freedom is one of the most fleeced acts specs of american -- aspects of american life. how a minor traffic violation can lead to intrusive and even abusive policing, especially for people of color. the automobile paradox raises a question, how did the meaning of freedom change in the 20th century when americans came to

expect and even accepted a great deal of policing in the very simple of their freedom? my book examines this question through the history of the fourth amendment. in the title of my talk today comes from a title of a chapter in the book of the automotive fourth amendment. by the end of my talk i hope to not only answer the question about how the meaning of freedom changed, but also to convince you that the fourth amendment we have today is largely the automotive fourth amendment. so let's start with the text of the fourth amendment, which are text the right of the people to be secure against unreasonable searches and seizures, and then list the word requirement and requirements for a warrant. i focused on the fourth amendment because a seizure, which includes a stop of a person, as well as the stop of a driver and car, is the first moment in a police encounter. so it's a constitutional provision that most directly

regulates this. so the reason why i wrote about the fourth amendment in the 20th century and not during the founding era when it was drafted and modified is that fourth mm in were pretty rare until the 20th century. in many years there were none. then the cases exploded in the 1920's. as you can see in this chart. three developments contributed to this explosion. first is the exclusionary rule, which some states adopted during this. time. under the rule, evidence of a crime had to be excluded if it was obtained in violation of a constitutional right. so if the police discovered evidence in violation of the fourth amendment and the government could use that evidence to commit the defendant. without evidence there is no case. this incentivized fourth

amendment challenges. second, national prohibition began to 1920 after the ratification of the 18th amendment. in the prohibition of alcohol increased the number of cases that involved evidence. so that also increased fourth mma cases. now these two development's coincided with the mass production of the automobile. the ford model t debuted in 1908 in the assembly line was perfected for the ford model t in 1914. and you can see in this chart, i circled the relevant years, 1908, when the model t was debuted with 63,000 500 cars manufactured. that number jumps in 1914 when the assembly line is perfected. it's a little over a half a million. in the 1920 during prohibition and jumps to 2 million. so the subsequent adoption cars then exploded.

so bootleggers favorite mode of transportation was the automobile, which is essentially a movable container for hiding and transporting things. so suddenly stay in federal courts throughout the country had hundreds of fourth mma cases all raising the same question, do prohibition agents need a warrant to stop and search a car? judges had a hard time answering this question. on the one hand, the text of the fourth amendment protects persons, papers, houses and effects. at the time this meant that a warrant was required to search and seize these houses. the effects is defined as a movable property, and a car is a movable property. which means a warrant would be required to stop a car, which is a seizure, and then to search it. on the other hand, cars can be driven off, and there wasn't time to go get a warrant. this was the problem of the

getaway car. prohibition enforcement depended on officers availability just stop and search cars without warrants. so some judges, like this legal analyst, argued that the supreme court should recognize the fourth amendment is inconsistent with the 18th and that the fourth amendment had been repealed. but the difficulty was that the rule of law are required courts to uphold both the fourth in the 18th amendments. both amendments were part of the constitution. police had to respect the fourth amendment, but citizens had to obey the 18th amendment. in many parts of the country, prohibition was very comfortable. think about the roaring 20's and speakeasies. it became clear that the 18th amendment depended on greater enforcement. so the difficulty was that the rule of law cut both ways. of course there wouldn't be much of a conflict between the fourth and 18th amendments, that there were no exclusionary rule.

without the rule a violation of the fourth amendment would result in the exclusion of evidence. perhaps the offending officer might be disciplined or sued, but the government could still prosecute violations of prohibition. so the issue came up, most in states that had not yet adopted the exclusionary rule and it came up if there should be in exclusionary rule or not. in 1923 the u.s. supreme court had its first case, carol versus united states. it's not too much of a coincidence, but it involved bootlegging. i just mentioned that federal courts already had adopted the exclusionary rule in 1914. so at happened in 1923 was that the justice wanted to reconsider the exclusionary rule. the petitioner's brief in the case cannot hide the surprise disappointment that the court was contemplating overruling the principal versus the united states. that is the principal versus exclusion.

does talk about the carroll case that began with federal prohibition agents recognizing the car in automobile roadster. this model on the road between detroit and grand rapids. they knew who carol was because they had tried to get him during a failed undercover operation a few months earlier. the agents had set up a buy of three cases of whiskey, but carol must've caught onto the scheme because he never showed up with the goods. so in the agents sought carol on the country road a few moments later they decided to investigate. and sure enough they found 68 bottles of whiskey and gin in the car. carol and his partner were called the carol brothers and were found guilty and fined $500. and they brought the conviction up to the supreme court, arguing that the taking of their car without a warrant violated the fourth amendment. the government was represented by the solicitor general. he agreed with the carol

brothers that they were right about the law. so they made an argument that we usually don't hear before the supreme court. he argued that the court should change the law. so he said it requires a reconsideration of these rules of law. and let me explain what that law is and how that interactive with -- interacted with the fourth amendment. i have to first explain how the 19th-century lawyers thought about constitutional law. legal scholars today call the 19th century way of thinking classical legal thought. according to classical legal thought, the world was divided into two spheres. the public sphere and the private sphere. the government could regulate the public sphere and these could be called public rights. an example that i discuss in my book is traffic laws. traffic laws regulate the use of public roads and highways for

the public safety. by contrast, individuals had to have the right to be left alone from the government and the private sphere, which could also be called private rights. an example is private property rights. so applying this classical legal thought to the fourth amendment, officers could search were sees things on the private sphere, but the warrant requirement didn't apply to the public sphere. for example, officers don't need a warrant to make a traffic stop to give you a traffic ticket. so the fourth amendment begins with the question, is the thing to be searched or seized in the public sphere or the private sphere? jurists look to the text of the amendment that checks persons houses and effects. and these were in the private sphere. so any search or seizure of these things required a warrant. so a seizure of a person is an arrest, so the arrest of a person requires an arrest

warrant. so it's important to keep in mind that the public or private nature wasn't self-evident or absolute. for instance, in 1928 a new york city police commissioner defended unlawful tactics on the ground. another example comes from the limitations of police power public didn't -- published in 1886. and in this section on arrests he begins with a general role that there could be no arrests without a warrant. that is what we talked about. but then he wrote that for public reasons that a person could be arrested without a warrant. and these were situations where getting a warrant would obstruct their enforcement laws. so there were two main exceptions for the requirement, which he states down here and he breaks it up into four, but it

could be summarized into two named exceptions. one had to do with felonies, number one and two here. basically an officer can make an arrest without a warrant if a felony was being committed, or if he had reasonable grounds to believe the person committed the felony. the second exception is misdemeanor. that requires a bit more from the government. the officer had to actually see the misdemeanor take place. in the officer had personal knowledge that the misdemeanor had taken place, not just believed. and in some jurisdictions this misdemeanor exception was limited to justice of the peace. so these warrant exceptions were referred to as the common law of arrests. another way to view the common law is as a list of exceptions to the warrant requirement. let me give you one more example. the home is, was and still is

the private sphere. so officers have to have a warrant to search a home. but that does not mean there can be no government regulation of homes. there are building codes to prevent fires, which can also authorize inspectors to enter homes to check for compliance. these laws are enacted for the public's interest. so, persons in houses generally fell within the private sphere, but they can be shifted over to the public sphere to justify exceptions for the public's interest. but there was a key difference between persons and houses. an officer can arrest a person without a warrant based on his determination of legal cause, and then they would receive due process afterwards. in contrast, government action regarding the home had to go through legislative or judicial procedures first.

lawmakers passed building and fire codes while judges decided whether to grant a warrant to search a home. under the common law, there is no provision for warrant list searches of a home. this is a common law that the solicitor general was referring to. what he argued had to be reconsidered. in the question that he posed for the court was whether this same rule, which applies to a man's dwelling, shall also apply to the automobile. which would mean there would be no warrant exception. so the alternative was to treat cars like persons, which would then raise the possibility of a warrant exception. so the house or a person, these were the two fourth amendment archetypes that would determine the issue. and to preview how this would continue to vex the supreme court throughout the 20th century, in 1971 the justice suggested that in the interest of credibility, they treat

automobiles precisely as we do houses or treat the searches of automobiles like we do the arrest of a person. so a house or a person. a question was whether a car was more like the house or a person. which is a great question. as the solicitor general put it, with the advent of motor vehicles, property has taken a form which has created necessity that has not existed. so it was a new kind of property. the question was, what kind of property was a car? the gift -- the difficulty was that had characteristics of public and private property. on the one hand cars were a private property, and for many judges it seemed obvious that cars were private in the same ways that a home was private. many early 20th century americans experienced cars not just as a mode of transportation, but as a new

private space. as you can see in this advertisement, a car can be a drawing room on wheels. in this hit 1905 song, the singer saying, promising her, you can go as far as you like with me and my mary oldsmobile. the song was such a hit that the company came the songwriters a free oldsmobile. so in the very earlier yields -- years of the car, people thought of them as a setting for intimate pleasures. on the other hand, cars traveled on public roads and were subject to a great deal of this relation explained in 1923, they are procured earlier in the subject of government control. modern life that society would be hopeless and harold. and they want to explain while there are natural rights to private property that existed in

the government, no one had such a right to drive without permission from the state. as you can see here. that permission was embodied in the preliminary license. it was a right to drive and operate a motor vehicle. this made it easier to categorize the car under the public sphere. so whether the car was public or private, new all the difference in deciding the fourth amendment issue. take the justice, he was a classical conservative who valued private rights over government regulations. so in the carol kays, he voted for the petitioners because he viewed them as private property which meant that the government

needed to get a warrant. three years later in 1928, the court decided homestead versus united states, which was another prohibition case where the government had wiretapped the phones and the defendants houses. in that case they voted for the government. and it wasn't that he changed his mind about prohibition, he wrote it for the government because the opinion make clear that the prohibition agents in the wiretaps who didn't trespass on the defendants houses, so they did not enter into the private space. on the public side was justice brandeis. brandeis understood the public/private framework, but unlike nick reynolds he valued public rights over private rights. he voted for the government because he appreciated for the government of motor vehicles, which are very dangerous at the time. in national movement on street

and highway for what's going on at the same time of the government are the supreme court deciding the case. i want to note here that scholars had been confused or puzzled by the vote in light of his famous dissent. his dissent was the very first time that the supreme court opinion mentioned the right to be left alone. that is the right to privacy. so the question that is asked is why did they appreciate the privacy when the government eavesdropped on a phone conversation, but not when it searched a car. he wrote that the right to privacy was not absolute and did not prohibit the public's interest. the privacy rights were threatened and he was a technophobe.

he almost wrote that the advent of television would be possible to pure into the inmost recesses of the home. but as a law clerk, who went on to become a second circuit judge convinced him that televisions don't work that way, although i think it worked that way today. the back then, the government could not look through televisions into people's homes. so this technophobe you extended to cars. he hated cars, never owned or drove one. so he never came to appreciate the car as a new private space like most americans who have raised -- embraced auto mobility. they had to be regulated, which meant that there was no limit on the government's right to seize and search vehicles without a warrant, which he made clear in an opinion he wrote two years after carol. so as you can see from their

positions, the problem with the public/private framework was that they could not take into account both the public and private aspects of a car. it was one or the other. but individuals have to have some rights in their cars, even when they travel on public roads, and the government needed to have ability to enforce its laws. the public/private distinction offered no guidance for balancing individual rights for the public's interest. so what did the chief justice do? what he did was he did away with the public/private binary of classical legal thought. instead he adopted a standard based unreasonable list. they did not prohibit all search and seizures, just unreasonable ones. rather than asking whether it car was public or private, he said the relevant question was

whether their particular car search was reasonable. when taft explained that it was possible to get a warrant that it would be reasonable to require one. but if it wasn't possible to get a warrant, it would be reasonable not to require a warrant. it would seem that reasonableness appended -- depended on whether there was time to get a warrant. but that wasn't the rule of the decision. he created an entirely new rule for cars and the ruling is right here. the search and seizure of a car is reasonable and constitutional an officer has probable cause for believing the automobile has contraband or liquor that is being illegally transported. taft admitted in a letter to the sun right here that the case created a rather new principal, even more revealingly he wrote to the justice, i know what you say and i will try to steer away

from the just -- distinction that we have a new law with constitutional construction, but are only adapt during old principles and applying them to new conditions. let me explain how this decision was a new rule. first it allowed prohibition agents to stop such a car if they believed that they had reasonable or probable cause. it allowed the police rather than the magistrate to determine legal cause in the first instance. second, carol applied a lower standard. at the time it was decided most prohibition on defenses or misdemeanors. in the common law for misdemeanors required knowledge through personal observation. so what carol did was lower the standards of knowledge to reasonable belief. so the upshot is that instead of creating a narrow exception for these circumstances, it instead

allowed the police to act based on their belief or judgment. and that is the authorized discretionary policing. so one judge critic cut -- criticize michigan's ruling which is called the automobile exception, by saying we will have officers running where no one can take them, speeding about in a for probable cause. of course a defendant could later argue that there was no probable cause to justify the vehicle stop. but critics on a weak spot in the way that the reasonable standard work. as you can see in this op-ed, it could be stretched by the officers to cover any set of circumstances, and the officers reasonable belief account would receive additional charity. this is basically the phenomenon of confirmation bias. it was guilty people who

challenged car searches. innocent people didn't have any evidence to challenge or to exclude, and it made it easier for a judge to conclude that the officers believed that if there was evidence according of the officers correct belief. alabama went so far to say that if an automobile is found to be transporting contraband in passing upon the reasonableness of the search. whether the reasonable standard would serve as a restraint on the police, dependent on how closely courts would scrutinize police account of reasonable cause. the carol disses and suggested the court did not have to look too closely. the court agreed that the government had probable cause if there was alcohol and are because agents knew what the carol brothers look like, they knew what kind of car they drove, and that they were on the road between detroit and grand

rapids for transporting alcohol from canada. it overlooked the testimonies of someone who said that they actually had no reason to suspect that the carol brothers, at that moment omar transporting liquor, as justice mick reynolds sums it up, that because a man wants to deliver up but did not, he may be arrested when he ventures to drive an automobile on the road to detroit. it was an important turning point. first it shifted the fourth amendment analysis from classical legal thoughts of categorical analysis. it is a bill that is category, public or private into an individualized determination of reasonableness. was the particular search reasonable? it centered the inquiry on the officers point of view on his belief that the search was justified. and as the courts decision

expanded their authority. let me fast-forward to the 1948 october turned when the supreme court heard to fourth amendment cases. the justices were clearly thinking about these two-- event consolidated. both cases were argued on the same day, and the decisions came out on the same day. it's also clear the justices had a hard time deciding these cases because they were argued early in the term in october, but the decisions came out on the last day of the term in june. if we look at these cases together, as the justices did, it shows the boundary. the first case, wolf versus colorado, officers received an anonymous telephone call about a woman suffering from a botched

abortion, a crime at the time. the woman gave the name of a chiropractor. they rated his office -- raided the office and look for information to charge the doctor with abortion. all agreed this violated the fourth amendment. the knock at the door without a warrant, only on the authority of the police, violated the fourth amendment and due process. even though the doctors office wasn't a house, the knock on the door conjured the image of a home. according to this opinion, this warrantless entry was of totalitarian governments. recent history was nazi germany,

and it said to be condemned. given the importance of the fourth amendment to a democratic society, the supreme court incorporated the amendment through the due process clause, meaning although the fourth amendment didn't apply to the states, it was applicable to the states through the due process clause. incorporation has huge federalism implications, but this is only a semi-famous case because incorporation didn't make too much difference since every state had an analogous amendment in their state constitutions. the real issue in wolf was whether the exclusionary role would also apply to the states, would also be incorporated. the remedy of the exclusionary rule wasn't in the text of the fourth amendment, and i won't get into the debate here, which was contentious, but a majority of the court decided it would

not be incorporated. 12 years later, the court would change its mind about this, which i will get to in a minute. the important point here is the court was unanimous that the police acted arbitrarily because they searched the abortion do ctor's office without a warrant. in the second case, federal investigators recognized a coop belonging to a man. i got this from his granddaughter, who had no idea her grandfather had a u.s. supreme court case and was convicted as a bootlegger. he did not touch alcohol in his later years. the fbi or the federal investigators investigated him, he had a reputation because there was an earlier case that

went all the way to the state supreme court for this same reason. based on his reputation into the observation that the rear end of the car appear to weighted down, they search the car and found 13 cases of liquor without a warrant. it might be puzzling the supreme court would agree to hear this case, because according to opinion, he was indistinguishable from caroll on material facts. the supreme court does not hear cases on straightforward applications of president unless the justices have reservations about the precedent. for most of the justices, what the officers did smacked of arbitrary policing, but the problem is that carroll had said similar actions has satisfied the reasonable standard. the opinion recognized the troublesome line posed by both cases is one between mere

suspicion and probable cause. i was so shocked when i first read this that i had to read it a few times because this is a stunning admission that the facts in both cases may have fallen just short of probable cause. in deciding this, the justices can either rule the carroll standard was wrong, or conclude the application of the standard was wrong. they did not want to overrule carroll because it would hinder law enforcement too much, but some justices felt if they held of the application of the standard was wrong, that would be tantamount to overruling carroll, and that was justice rutledge's view. he indicated in the first conference, this is the memo, and he voted reverse, that is the second row. i want to note here, the vote

hereto affirmed the conviction by jackson. justice rutledge wrote a memo that, you can read the handwriting, he has finally come down on one. carroll is controlling here. he changed his mind. justice jackson was also torn. he initially voted to affirm the conviction under carroll and was tasked for writing an opinion for the court, and it ended up becoming a dissent. he had just returned as a prosecutor at nuremberg, and search and seizure is an ours -- is a weapon in the arsenal of

government. he wrote that when a car is forced off the road, summoned to a stop i a siren and brought to a halt under such circumstances as disclosed, we think officers are in the position to -- so to give, put some limits to police on the road, he has to analogize to a home. the majority of the justices did not find this analogy persuasive. according to rutledge, who wrote the opinion for the court, it involved the use of public highways, and this did not involve searching the home or place of privacy presented. in these situations, it was reasonable to give some leeway to the police even if they made some mistakes. today, courts still cite this

case for the proposition that in dealing with probable cause, we deal with probabilities, meaning the police can be wrong. to sum up, it fell under the public sphere, where justices defer to -- even if they had misgivings. placing these side-by-side as the justices did, it's clear the line between public and private, cars and houses, mattered for deciding when the fourth amendment would require an officer to get a warrant. it also mattered for determining the police's actions are considered arbitrary or not. the history of cars changes our understanding of fourth amendment history. the history i learned in law school focuses on the one course due process revolution, which started in 1961.

the warren court created a national standard of criminal procedure under the due process clause. in other words, the supreme court began releasing the police and creating more rights. in the standard narrative of the due process revolution, the court is the protector of individual rights, particularly the rights of minorities and the poor. but i argue in my book that the standard narrative only tells part of the story. the private side, the landmark fourth amendment cases that expanded rights in the privates here, not the public sphere. i mention wolf versus colorado that incorporated the fourth amendment. the more famous is not versus ohio, decided in 1961, which incorporated the exclusionary rule and launched the due process revolution. in this case, the police searched a home without a warrant, a classic fourth amendment violation of the private sphere. there were many more, thousand

year car cases to the police. over the 20th century, the reasonable standard function as a differential standard that gave the police more power. from the perspective of cars, the due process revolution was not meant to be a revolution against the police's powers. this mattered, in the 20th century when we became an automotive society, the fourth amendment that mattered was the automotive. the traffic stop still is the most common encounter between individuals and the police, as these codes observe. as early as 1945, you see the captain of the pennsylvania state police saying traffic law enforcement provides many contacts between citizens and police. 1966, a yell law professor talks about how traffic stops are the chief point of contact between

individual citizens and of the law. by 1997, stanford law professor writes that most americans have never been arrested or had homes searched by police, but almost everyone has been pulled over. a poet once described the automobile as an essential, constituent to feature of american life. so much so that questions about the limits of policing powers, whether or not to do with cars, it frequently came up in the context of a vehicle or traffic stop. these are questions my book covers in more detail. let me end by answering the question i posed at the beginning of my remarks -- how did the meaning of freedom change when the similar freedom was subject to a great deal of leasing? -- of policing? looking at for the minute law, it did not mean freedom from policing, it meant reasonable policing.

reasonable in this -- reasonableness is a touchstone of the fourth amendment. this is a standard the carroll decision established for a modern automotive society. i will end there, to turn it over for the q&a portion. >> thank you very much. this is a fascinating presentation and we are going to be taking russians from the audience. if you have questions, please type them into the q&a section and we will get to as many as we can. to get started, one of the images on the screen that we saw was frank sinatra's driver's license -- where did you get that? prof. seo: the internet. [laughter]

the internet has a lot of great images. when you are doing a history presentation, a lot of images are in the public domain now, which is great. also government records are in the public domain as well. james: that was great. i thought it must have cost you a pretty penny if you actually owned it. [laughter] you mentioned brandeis's fear of technology and you alluded to the fact that he might not have been entirely wrong. he was wrong at the time, televisions being able to peer in your home, but where do you see the privacy interests going in that regard when we find on our cell phones, for

example, the pop-up advertisements that come very close to conversations you have and having with a friend. do you see more regulation there and invasions of privacy there in trends of the law? prof. seo: that is a really interesting question for me as well, because the epilogue of my book discusses very briefly technology in this history. one thing is questions about privacy with modern technologies like smartphones, gps devices and drones, all raise difficult questions about whether the public private distinction. the answer is the same answer the automobile posed -- it is both. people disclose so much of

himself using technology, social media for example. the third already doctrine says when we disclose information to third companies like internet companies, we don't have privacy expectation anymore. so there is a lot of public aspects of modern technologies and a lot of people are also advocating for government regulation of internet of things , the world wide web, a lot of new technologies. that is making arguments for the public sphere. at the same time, there are private aspects to this and people expect privacy in their chats and text messages, the pictures they take on their smartphones. the overarching theme, one of the themes of my book, is in

modern society, it is neither this or that, it is both public and private. and that is a really hard question, how do courts and the law balance the public and private aspect of everything? james: fascinating. i think you are right, we are seeing more cases challenging those lines and testing those lines and how they are applied. do we have other questions? ok, if you bear with me, i will look for the qa. i don't have them on my screen right now, so if i can borrow yours. thank you. question -- how did you come to work on automobiles and the fourth amended? -- amendment? prof. seo: i like to say became

an accidental historian of the automobile. i went to graduate still to -- graduate school to study the war on drugs, and i was interested in constitutional law, so the fourth amendment is the main constitutional provision that governs the police. a lot of fourth mimic challenges come up in the context of drug enforcement. i wanted to start from the beginning. i have read every fourth amendment case from the beginning through mid 20th century when they all started sounding similar. then i was more selective about the cases i read. then i realized for the minute cases were rare until the first two decades of the 20th century, and that is when i realized a lot of the cases involved cars. i think it's a some thing about american society becoming a car society when the history of cars with so much part of the history

on the war on drugs, that they are connected. i became interested in looking at the history of ours, and traffic actually by accident, because i was interested in the or on drugs. james: that is great. how, if at all, did the automotive fourth amendment influence application of the fourth amendment in the private context, in the home? what was the influence in the private context of the home? prof. seo: i would say the influence was not directly through case law. informing the private side of fourth amendment cases, through social phenomenon. my book argues that because of cars and a need for traffic laws

and traffic law enforcement, that actually was the most significant reason for the development of modern policing as we know it today. modern policing becoming professionalized, weaponized, even increasing deference. i think it is the development of professionalized policing that has informed fourth amendment jurisprudence, even in the private sphere. i mention how in the common law, there is no warrant exception for searches of homes. the first exception for hot pursuit of a felon appears in the mid 20th century, and by then, definitely police are known as professionalized crime fires -- fighters. the social history of the policing as a profession informs the private side of fourth amendment law. james: thank you. we have time for one last question here. i will use this 1 -- can you

make any suggestions on how your book could be used with high school students who are researching issues around driving while black? you mentioned i think at the outset how it can be used in discriminatory ways. prof. seo: yes. i love this question because when i wrote this book, i intentionally wrote in a very accessible way because i wanted students to read it. i think it is readable and accessible at a high school level. if excerpts had to be chosen, i would definitely choose the introduction, and one chapter. and it depends on what the teacher wanted to emphasize. lots of students love chapter one because it deals with the

problem about once laws are enacted, who will enforce them? which is a basic question i wish every policymaker would think about when they enact laws. something i thought about with covid when they were enacting all of these regulations, no more than 12 people in your home a thanksgiving -- was going to enforce that? chapter one is really about the relationship between laws on the books and enforcement. chapter two is about the history of leasing, which -- of policing, which a lot of students also bite. but if you want to focus on driving while black, chapter six offers a history of driving while black. james: thank you so much, just a wonderful presentation and a fascinating topic. i want to remind our audience members that you can obtain signed copies of professor seo's

book, they are in the society gift shop. i will hold up the book for your visual association with it. we hope you will purchase it, it is a very thoughtful read and professor seo has given a great presentation today. i think you will find the book equally fascinating. we are very grateful for your time today, and thank you all for participating. prof. seo: thank you for coming and inviting me. i really enjoyed it today. >> sunday on the presidency, a washington post columnist talks with a white house historical association president about reconsidering nancy reagan's legacy. here is a preview. >> you mention iran-contra, that to me, that chapter is the heart of my book.

this is a scandal, it begins at the end of 1986 and it threatens to swallow the reagan presidency. people who are too young to remember, in involved the united states, they were found to have been selling arms to this governments enemy, iran, in exchange for the release of american hostages being held in the middle east. the money from those sales was in violation of u.s. law, going to the contra rebels fighting the luckiest -- leftist sandinista government in nicaragua. very complicated. when it breaks, ronald reagan, an optimist, this will work out, i didn't do anything wrong, and it is really nancy reagan who believes this calls for a complete shakeup of the white house staff. starting with chief of staff.

her husband doesn't want to do it. they go round and round about this for weeks he is like i am not going to sacrifice other people just to save my own hide. at one point he was hurt to scream at her get off my back. ultimately, she wins. the other thing she does that i think is just as important and maybe more important was bringing ronald reagan around to the point where he could at it to the country and himself that he had in fact, in violation of all of his promises and all of his claims to the contrary, traded arms for hostages, and in a televised speech, once again, nancy doesn't trust the west wing to write this, she brings in her own speechwriter, and the president acknowledges this. it is compared to kennedy's bay

of speech -- bay of pigs speech. the next day, his polls go up nine points. a country that had begun to believe ronald reagan wasn't being straight with them gets its confidence back in his integrity. >> learn more about nancy reagan sunday on the president at 8:00 p.m. stern, 5:00 p.m. pacific on american history tv. ♪

>> sunday on american history tv, a panel of journalists and law professors compare the definitions of free speech in france and the united states and exports whether the french model would work here. >> the supreme court when it first began interpreting the first amendment in 1919, upheld the convictions of a broad range of individuals who had criticized world war i and the draft on the ground that such a speech could interfere with the ability of the government to draft soldiers and fight the war successfully, and therefore could be prohibited. later, during the communist era in the 1950's, the supreme court upheld the convictions of the leaders of the communist party on the grounds there speech could be harmful to the nation. during the civil rights era, lower courts upheld convictions

of civil rights marchers because they triggered a response by white onlookers seen as violent, and therefore you could punish the marchers for doing this. over time, what the supreme court came to understand is first of all, we cannot trust ourselves to have the authority to decide what we as americans can say. in the moment, we may think we are being fair-minded and balanced and appropriate and proportionate, but with hindsight, we realize our judgment has been severely colored by the circumstances and the pressures of the time. what the court learned over those decades is it cannot trust ourselves or itself to have the authority to approve the suppression of speech when that

speech might be offensive to others. even if it causes harm, unless the harm is likely to create an imminent and grave danger. one would not start there. if one wanted to begin in 1919, you would have a hard time justifying such an extreme approach to free speech, and even though we know justice holmes and justice brandeis embraced an approach like that early on, it is not even clear they would have carried it as far as we do today. i think a lot of first amendment jurisprudence is the product of learning from our own mistakes and learning we cannot trust ourselves. in particular, we cannot trust ourselves to allow the majority to decide what points of view can be prohibited. yes, you can regulate speech in terms of the time, place and

manner of speech, not the message being communicated as long as it is reasonable. as soon as the government picks out specific points of view, antiwar speech, communist speech, civil rights speech, hate speech, we don't trust ourselves to do that. we therefore err dramatically on the side of guaranteeing free speech. and there is a cost to that. we are allowing speech that causes harm in society. what we have learned is better to deal with those harms than the danger of giving the government the ability to decide which points of view it will censor. >> watch the full program sunday at 7:00 p.m. eastern, 4:00 p.m. civic here on american history tv. >> next on lectures in history, a brown university professor teaches a class about guerrilla warfare in the american civil war.

guerrilla warfare is largely characterized by its tactics, including ambushes and surprise raids on unsuspecting troops and towns. she talks about how there were bands of guerrilla soldiers on both sides during the civil war. these small bands of men on horseback were very nimble and difficult to capture, especially confederates, who often did not wear uniforms and blended back into the population after an attack. prof. nelson: on april 16, 1865, a general wrote a letter to say the guerrilla had information about the assassination of abraham lincoln. he warned him. it may be needless to caution an